Citation Nr: 1600655
Decision Date: 01/08/16 Archive Date: 01/21/16
DOCKET NO. 09-41 943 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to a rating higher than 30 percent for cervical spine disability.
2. Entitlement to an initial rating higher than 20 percent for right upper extremity radiculopathy as a neurological manifestation of the cervical spine disability.
3. Entitlement to a higher rating for residuals of prostate cancer, rated as 100 percent disabling prior to March 1, 2009, as 20 percent disabling from March 1, 2009, to September 29, 2013, and as 40 percent disabling from September 30, 2013.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. Whitehead, Counsel
INTRODUCTION
The Veteran served on active duty from March 1987 to June 2008.
These matters come before the Board of Veterans' Appeal (Board) on appeal from December 2008 and April 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
With respect to the prostate cancer claim, on the VA Form 8 Certification of Appeal, the RO characterized the issue as the propriety of the reduction of the rating for residuals of prostate cancer from 100 disabling percent to 20 percent disabling. The Board observes that the Veteran's prostate cancer disability is evaluated under Diagnostic Code 7527-7528 wherein a 100 percent disability rating ceases, by operation of law, following a six-month convalescence period which starts upon the conclusion of cancer treatment. See Tatum v. Shinseki, 26 Vet. App. 443 (2014) (determining that the 100 percent rating under Diagnostic Code 7528 is authorized for six months following treatment for cancer followed by a disability rating for treatment for residuals of cancer). Therefore, the RO's action in assigning the 20 percent rating was not a "rating reduction," per se, as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (holding that a 100 percent rating for mesothelioma under Diagnostic Code 6819 ceased to exist by operation of law as a controlling Note (similar to that of Diagnostic Code 7528) contained a temporal element for that 100 percent rating). In Rossiello, the Court also explained that the Note allowed for separate successive ratings for "different" conditions- the treatment and convalescence periods for cancer treatment and a subsequent rating for any residuals. Therefore, the Board has recharacterized the issue, as reflected on the title page.
In an October 2013 rating decision, the RO assigned a 40 percent rating for the Veteran's residuals of prostate cancer, effective from September 30, 2013. As the Veteran is presumed to seek the maximum available benefit for a disability, the increased rating of 40 percent does not resolve the appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993).
The issue of entitlement to an increased rating for residuals of prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The Veteran's cervical spine disability is not productive of unfavorable ankylosis of the entire cervical spine or incapacitating episodes, and the associated neurologic impairment in the right upper extremity been separately evaluated.
2. The Veteran's right upper extremity radiculopathy is manifested by no more than mild incomplete nerve paralysis.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 30 percent for the cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5242 (2015).
2. The criteria for rating higher than 20 percent for right upper extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.14, 4.120-4.124a, Diagnostic Code 8511 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.
They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.
The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The Veteran's cervical spine claim was filed as a "fully developed claim" pursuant to the Secretary's program to expedite VA claims. Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a Veteran submits all evidence relevant and pertinent to his claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the Veteran with a VA examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ. The fully developed claim form includes notice to the Veteran of what evidence is required to substantiate a claim for service connection, as well as the Veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings and effective dates. See id.
The claim for an increased rating for right upper extremity radiculopathy arises from a disagreement with the initial disability ratings assigned following the grant of service connection and, as such, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
Regarding VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained the service treatment records, the reports of VA examinations, along with VA treatment records, private treatment records, and lay evidence. The Veteran has not identified any additional records that VA needs to obtain to ensure an equitable disposition to the claims.
VA also satisfied its duty to obtain a medical examination when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a). The Veteran was provided with a VA examination in April 2015, the report of which is of record. The Board acknowledges that the April 2015 VA examiner did not review the Veteran's electronic claims file. However, the lack of review of a claims file alone does not render the examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In an initial or increased rating case, it is the findings on examination that are most salient to the claim. Moreover, the examiner personally interviewed and examined the Veteran, reviewed his VA medical records, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes and discussed the presence of physical symptoms and their functional impairment. Nothing suggests that the examiner documented findings inconsistent with the medical history outlined in the record or not representative of the Veteran's symptomatology; therefore, the Board finds the VA examination report in this case adequate for rating purposes.
As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claims.
Legal Criteria
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2015). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).
Cervical Spine Disability
The Veteran seeks a higher rating for his service-connected cervical spine disability. By way of a September 2008 rating decision, the RO granted service connection for the Veteran's cervical spine disability and assigned an initial 20 percent rating for the disorder, effective from July 2008. In February 2015, the Veteran filed the claim for an increased rating currently on appeal. The RO assigned an increased, 30 percent rating for the cervical spine disability in the June 2015 rating decision, which the Veteran appealed.
Initially, the Veteran has been awarded a temporary, 100 percent rating for his cervical spine disability, effective from December 2014 to February 2015, based on surgical treatment requiring convalescence. Because he received the maximum disability rating, the evidence dated during this time period will not be discussed.
The Board also notes that the Veteran is currently in receipt of a 20 percent evaluation for right upper extremity radiculopathy related to his cervical spine, and this disability is addressed further below. He has not reported any other neurological impairment or symptoms due to his cervical spine disability, and there is no other evidence of any neurological impairment other than his right upper extremity. Therefore, no further discussion regarding any other neurological impairments will be undertaken.
Throughout the period on appeal, the Veteran's cervical spine disability has been rated as 30 percent disabling under Diagnostic Code 5242. Diagnostic Code 5242 directs that degenerative arthritis of the spine be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, at 38 C.F.R. § 4.71a, a 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Id.
Note 1 to the General Rating Formula provides for a separate evaluation for any associated, objective neurologic abnormalities. 38 C.F.R. § 4.71a.
Note (5) following the formula provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis.
In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS) under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4,71a, Diagnostic Code 5243.
The medical evidence of record includes a November 2014 private evaluation report and December 2014 follow up record that document the Veteran's reports of ongoing neck pain for the previous three to four months. November 2014 x-rays revealed stable hardware and fusion, disc degeneration, and spurring throughout the cervical spine. A December 2014 magnetic resonance imaging study of the cervical spine showed intact prior fusion, moderate-sized disc protrusion to the left, and moderate foraminal stenosis. Based on these findings, the examiner recommended that the Veteran undergo cervical disc fusion surgery.
Following his December 2014 surgery, the Veteran underwent a VA neck conditions examination in April 2015 to assess the severity of his cervical spine disability. The examiner reviewed the Veteran's VA records and recorded the Veteran's report of symptoms and his use of a neck brace up until three weeks prior to the examination. The Veteran denied having flare-ups of his symptomatology or having any function loss or impairment due to the disability. Range of motion testing of the cervical spine revealed forward flexion from zero to 15 degrees, extension from zero to 5 degrees, right and left lateral flexion from zero to 15 degrees, right lateral rotation from zero to 15 degrees, and left lateral rotation from zero to 25 degrees. Pain occurred with all ranges of motion tested. The examiner noted that the Veteran's range of motion contributed to his functional loss in that he had to twist his torso to look right or left and had a limited ability to look up or down. There was no additional loss of function or range of motion following three repetitions. The examiner noted pain and fatigue to significantly limit the Veteran's functional ability with repeated use over a period of time. The spine was not ankylosis and there was no finding of IVDS of the cervical spine.
In written statements of record, the Veteran endorsed having constant pain daily in his upper and lower back and that his neck hurt when he sat upright for a period time. He described having stiffness and pain in his neck when he sat in front of a computer for longer than an hour, after which he reportedly had to get and move around. The Veteran further described having difficulty finding a comfortable sleeping position at night due to constant pain. In an October 2015 written brief, the Veteran's representative asserted that during flare up episodes, the Veteran's range of motion is consistent with unfavorable ankylosis of the entire cervical spine.
Based on the evidence described above, the Board finds that the Veteran's cervical spine disability does not warrant a rating higher than the currently assigned 30 percent evaluation at any time during the period of the claim. Although the Veteran's disability has been productive of painful and limited cervical spine motion, the cervical spine has not been ankylosed. Despite the Veteran's assertions otherwise, there is no objective evidence indicating that he does not retain some motion of his neck. Moreover, there is no indication the disability has resulted in difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Thus, there is no basis to assign a higher rating under either the General Rating Formula.
The Board has also considered whether the Veteran's cervical spine disability resulted in a level of functional loss greater than that already contemplated by the assigned rating for this period. DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). As the Veteran has already been assigned the maximum schedular rating for limitation of motion of the cervical spine, a higher rating is not warranted based on additional limitation of motion due to such factors as pain, pain on motion, weakened movement, incoordination, or excessive fatigability because the maximum limitation of motion, prior to ankylosis (ankylosis means no motion), is established. See id. In this regard the Board notes that a higher evaluation is only warranted if the evidence demonstrates unfavorable ankylosis of the entire cervical spine. As described, the Veteran's neck disability has not been productive of ankylosis at any point during the period on appeal.
Further, the evidence does not show a diagnosis of IVDS or demonstrate a history of incapacitating episodes requiring bed rest. Therefore, a higher rating for IVDS is not warranted either.
In sum, the evidence reflects that a rating in excess of 30 percent for the Veteran's cervical spine disability is not warranted throughout the rating period. As the weight of the evidence is against the claim for a rating in excess of that already assigned, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Right Upper Extremity Radiculopathy
As noted above, the Veteran is assigned an initial 20 percent rating for right upper extremity radiculopathy related to his cervical spine disability, and he seeks a higher rating for this disability.
The Veteran's right upper extremity radiculopathy is evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8511. Diagnostic Code 8511 provides ratings for paralysis of the middle radicular group of nerves. The Veteran is right handed and thus ratings relating to the major side are applicable. Diagnostic Code 8511 provides that mild incomplete paralysis is rated as 20 percent disabling on the major side; moderate incomplete paralysis is rated 40 percent disabling on the major side; and severe incomplete paralysis is rated 50 percent disabling on the major side. Complete paralysis of the middle radicular group, with adduction, abduction, and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected, is rated 70 percent disabling on the major side. 38 C.F.R. § 4.124a, Diagnostic Code 8511.
The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.
Further "disability from [neurological disorders] and their residuals may be rated...in proportion to the impairment of motor [and] sensory... Consider especially...complete or partial loss of use of one or more extremities... referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves." 38 C.F.R. § 4.124a.
Private evaluation and treatment records dated in November and December of 2014 reflect the Veteran's reports of experiencing constant neck pain with paresthesias into his right arm for the previous three to four months. The November 2014 physical examination of the upper extremity revealed weakness of +4/5, diminished reflexes for the right triceps, and a negative Hoffman sign. On examination in December 2014, the Veteran continued to show weakness of the right triceps, reported as 4/5 and +4/5, noted to be consistent with the a C7 distribution.
During the April 2015 VA neck conditions examination, the Veteran reported that his right radiculopathy had improved since his December 2014 neck surgery. The examination revealed normal muscle strength for the right upper extremity, with the exception of decreased strength with elbow extension. His reflexes were decreased, reported as 1+, for the right arm, and the sensory examination was normal. There was no evidence of muscle atrophy. The examiner assessed the Veteran as having mild numbness and paresthesias of the right upper extremity, and noted involvement of the middle radicular group.
In written statements, the Veteran described experiencing numbness of his arm and tingling in his hands.
Having carefully reviewed the evidence pertaining to the claim, the Board concludes that a rating higher than 20 percent is not warranted for the Veteran's service-connected right upper extremity radiculopathy. While the Veteran reported experiencing tingling and numbness of his right arm and hand and the objective evidence indicates his right arm reflexes are decreased, his symptoms are not best characterized as "severe." Notably, his right arm muscle strength was normal on examination, and he has demonstrated normal sensation of the upper extremity. There is no objective evidence of muscle atrophy. Moreover, the April 2015 examiner characterized the Veteran's right upper radiculopathy as mild. There is no objective evidence of record indicating that the Veteran's symptoms more closely approximates severe incomplete paralysis of the middle radicular group to warrant a higher rating under Diagnostic Code 8511.
In reaching this determination, the Board has considered whether a higher rating is assignable under any other diagnostic code, but has found none.
The Board has also considered the doctrine of reasonable doubt in reaching this decision; however, the Board has determined that it is not applicable to the claim of entitlement to rating higher than the rating upheld herein because the preponderance of the evidence is against this claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Other Considerations
In reaching the above determinations, the Board has carefully reviewed and considered the Veteran's statements regarding the severity of his cervical spine disability and right upper extremity radiculopathy. Nevertheless, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.
The Board has also considered whether the Veteran's claims should be referred to the Director of the Compensation Service for extra-schedular consideration under 38 C.F.R. § 3.321. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the Veteran's cervical spine disability and right upper extremity radiculopathy are contemplated by the schedular criteria. Therefore, the Board has determined that referral of the claims for extra-schedular consideration is not in order.
Further, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 ( Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.
Finally, as the Veteran has not contended, nor does the evidence show that his disabilities render him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. The evidence indicates that the Veteran is currently employed. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
ORDER
Entitlement to a disability rating higher than 30 percent for the cervical spine disability is denied.
Entitlement to an initial disability rating higher than 20 percent for right upper extremity radiculopathy is denied.
REMAND
Additional development is needed for the remaining issue on appeal.
The Veteran seeks a higher disability rating for his service-connected residuals of prostate cancer. He last underwent a VA examination to assess this disability in October 2013. In July 2015, the Veteran reported that his disability has worsened in that he now experiences increased urinary symptoms. When there is evidence that a disability has worsened since it was last examined, VA's duty to assist includes providing him with a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Thus, the Veteran must be afforded a contemporaneous examination to determine the current severity of his service-connected disability.
Finally, the record includes an incomplete copy of the July 2015 Supplemental Statement of the Case (SSOC) wherein the RO readjudicated the claim for an increased rating for residuals of prostate cancer. On remand, the originating agency must ensure that a complete copy of the July 2015 SSOC is associated with the evidence of record.
Accordingly, the case is REMANDED for the following action:
1. Associate a complete copy of the July 2015 SSOC with the evidence of record.
2. Obtain all VA treatment records for the Veteran dated from July 2015 to the present. All attempts to obtain these records must be documented in the claims file.
3. Schedule the Veteran for the appropriate VA examination to assess the current nature and severity of his residuals of prostate cancer. The claims file must be made available for review, and the examination report must reflect that such review occurred. All tests and studies deemed necessary to ascertain functional impairment must be performed. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria.
4. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of his claim. See 38 C.F.R. §§ 3.158, 3.655.
5. After completing the above actions, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs